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Responding to Strategic Lawsuits Against Public Participation (SLAPPs)

SLAPP stands for "Strategic Lawsuit Against Public Participation."
It refers to a lawsuit filed in retaliation for speaking out on a
public issue or controversy. You might be "SLAPPed" for actions such as
posting a blog entry, posting a comment on another person's blog,
writing a letter to the editor of a newspaper, testifying before the
legislature, reporting official misconduct, or circulating a petition.
Often, SLAPPs are brought by corporations, developers, or government
officials against individuals or community organizations that oppose
their actions.

Lawsuits targeting individuals who post anonymously on the
Internet, usually because their posted messages criticize the actions
of public figures or corporations, are sometimes called cyberSLAPPs.
Like a regular SLAPP, a cyberSLAPP aims at chilling free speech by
intimidating critics with the prospect of defending an expensive
lawsuit. But it also often aims at uncovering the identity of the
anonymous critic. For more information on the court procedures a lawyer
or party can use to identify an anonymous Internet speaker, see Potential Legal Challenges to Anonymity.

Most SLAPPs ultimately would fail if litigated fully, but the
SLAPP filer doesn't usually intend to do so. As previously mentioned,
the point of a SLAPP is to intimidate and silence the target through
the threat of an expensive lawsuit. Although the First Amendment to the
U.S. Constitution protects freedom of speech, the U.S. legal system
generally gives the benefit of the doubt to a party bringing a lawsuit
until the fact-finding stage, and a winning defendant is not usually
entitled to recover attorneys' fees to cover the expense of legal defense (as in
some other countries). This means that, even if the claim ultimately
fails, the process of defending against a SLAPP through the legal
system can be a daunting and expensive prospect for many individuals.

Two other states, Colorado and West Virginia, do not have
anti-SLAPP statutes, but their courts have recognized a defense to
lawsuits that target activities aimed at petitioning the government for
action on issues of public importance. These common law (i.e.,
judge-made) rules offer similar protections to those provided by some
anti-SLAPP statutes.

If you get sued in a state with an anti-SLAPP law, you may be
able to dismiss the lawsuit at an early stage of the proceeding and
recover your costs and attorneys' fees. If you live in a state with an
anti-SLAPP law but someone sues you in a state without one, you may be
able to argue that the laws of your state should apply. For example, if
you are a journalist in California (which has an anti-SLAPP statute) writing about the local community impact of the actions of a corporation based in Iowa
(which does not have an anti-SLAPP law), you may be able to argue that
California law should apply even if the corporation files a lawsuit in Iowa.

See the state pages for state-specific information on anti-SLAPP laws.

Types of SLAPPs

SLAPP suits come in many forms. Some of the common claims asserted in SLAPPs include:

Defamation: Defamation is the term for a legal claim
involving injury to reputation caused by false statements of fact and
includes both libel (typically written or recorded statements) and
slander (typically spoken statements). Defamation is the most common
basis for a SLAPP suit. An individual or organization might file a
defamation lawsuit in reaction to criticism or negative commentary
published on- or offline, such as in a blog post, news report, letter
to the editor, or speech at a public meeting, just to name a few. For
more information, see the Defamation section.

Interference with contract or economic advantage: This
claim alleges that you intentionally interfered with a contract or
other business relationship between the plaintiff and a third party
that would have benefited the plaintiff economically. You also might
see this claim referred to as "tortious interference with business
relations," "tortious interference with contract," or some
like-sounding phrase. In the publishing context, you often see this
claim included along with a defamation claim. Like a defamation claim,
individuals and organizations tend to bring this claim in response to
criticism or negative commentary published on- or offline, or political
activity that hampers the plaintiff's activities.

Intentional infliction of emotional distress: This
claim alleges that the defendant intentionally or recklessly committed
some outrageous act that caused the plaintiff extreme emotional
distress. As above, in the publishing context, you often see this claim
included along with a defamation claim, and it often comes in response
to criticism or negative commentary published on- or offline.

Conspiracy: A conspiracy is an agreement between two or
more persons to commit an illegal act. A plaintiff might claim that you
and someone else conspired to commit defamation, to interfere with a
contract, or to intentionally inflict emotional distress. Often, the
plaintiff will not even identify who you allegedly have conspired with,
naming instead an unspecified number of "John Does" or "Jane Roes" in
the complaint.

Keep in mind that, at least at the outset, calling a lawsuit a
SLAPP is a subjective evaluation of the merit of its legal and factual
claims. If someone sues you, the complaint will not identify itself as
a SLAPP, and the person filing the lawsuit will vigorously deny
characterization of it as a SLAPP. In the end, you cannot definitively
establish that a lawsuit is a SLAPP until a court has ruled on the
question.

How To Protect Yourself Against a SLAPP

Be aware that when you are speaking out on a matter of public
controversy that involves significant private interests or the
reputation of a government official, you may find yourself the target
of a SLAPP. By being prepared, you can minimize your risk of being
SLAPPed and continue to exercise your rights with confidence.

Know your rights

Under the Constitution, you have a right to free speech and to
petition the government. Courts have interpreted these rights to form
legal doctrines that protect the types of activities that attract
SLAPPs. Note, however, that the Constitution generally does not protect
defamatory, threatening, or harassing speech.

Tell the truth

Truth is an absolute defense to a defamation
claim. You can protect yourself by not publishing rumors or scandalous
innuendo, and you may want to avoid broad, sweeping generalizations or
speculative rhetoric in favor of accurate, fact-based statements.

Diligent fact-checking will make you a harder target for a
SLAPP suit. Always cite to legitimate sources. Public records are an
excellent source of solid factual information. For more information on
how to use the law to obtain government records, see Access to Government Information. If you use Internet sources, print out the website page in case the information there changes at a later date.

Even if what you publish ultimately turns out not to be true,
you could still have a defense if the subject of your publication is a
public figure, such as a celebrity, a government official, or someone
who takes on an important role in the relevant debate or controversy.
Public figures must prove that you made false statements about them
with "actual malice" -- that is, you actually knew that your statements
were false or recklessly disregarded their falsity.

In a defamation lawsuit, a court will not hold you liable for
stating an opinion. But, be aware that simply adding the words "in my
opinion" to the beginning of a sentence will not necessarily help you.
For example, if you write, "In my opinion, Mayor Jones is taking bribes
from local developers," you could be liable for defamation, unless the
statement is true. In addition, if your opinion implies the existence
of facts that can be proven true or false, then it is a statement of
fact and not opinion for legal purposes, and you could be held liable
for publishing it if the underlying facts turn out to be false.

For more information on how to protect yourself against a defamation claim, see the Defamation section.

Insurance

Insurance may be a good way to protect yourself from the expense
of defending against a SLAPP. Your homeowners or renters insurance may
cover damages and legal fees if someone sues you for defamation,
invasion of privacy, or other legal claims. Most homeowners and renters
policies, however, exclude coverage for "business pursuits," and a
court might find that your online activities are a business pursuit if
you earn advertising income from your site or blog or you collect money
through other online means. The rules vary from state to state. If your
state excludes coverage for business pursuits and you make sufficient
money from your site to be excluded, media liability insurance might be
a better option, although for many it is prohibitively expensive. See
our Finding Insurance section for details on all these insurance-related issues.

What To Do If You Think You've Been SLAPPed

If someone files a lawsuit against you, and you believe it is a SLAPP, you should seek legal assistance
immediately. Be aware of the deadline for filing a response to the
complaint; if you miss the deadline, the court may enter a judgment
against you without hearing your side of the case.

As noted above, twenty-six states and one U.S. territory have
enacted anti-SLAPP statutes to help protect citizens who speak out.
These anti-SLAPP laws vary in effectiveness, and some have not yet been
tested in a legal case. As a general matter, however, they attempt to
shift some of the costs and burdens of litigation from you to the
person filing the SLAPP suit. See State Law: SLAPPs for state-specific information.

Some common provisions of anti-SLAPP statutes include:

Protection for speech on issues of public significance and/or
activities aimed at petitioning the government for action on economic,
social, and political issues;

Procedural mechanisms for obtaining early dismissal of a SLAPP;

Recovery of attorneys' fees and court costs incurred in defending against a SLAPP;

Expedited review of motions to dismiss in order to reduce the time and costs of litigation; and

Limits or stays on discovery while the court considers a motion to dismiss under the anti-SLAPP law.

If you live in a state with an anti-SLAPP law, you will want to move
quickly to get the case dismissed. It is a good idea to seek legal assistance
in getting the case dismissed. Keep in mind that, although hiring legal
help is expensive, you can recover your attorneys' fees if you win your
motion. In addition, there may be public interest organizations that
would be willing to take on your case for free or for a reduced rate.
The First Amendment Center has an excellent list of organizations that can help.
You'll want to find help as soon as you can because successfully filing
and arguing a motion to dismiss can be complicated, and you and your
lawyer need to move quickly to avoid missing important deadlines.

If your insurance company provides you with a lawyer who is
not familiar with SLAPP cases, that lawyer may want to try to settle
the case in order to minimize costs. This may sound like a good idea,
but a settlement will likely include the condition that you do not
discuss the matter in the future. With such a settlement, the SLAPP has
been successful, because you cannot publicize the SLAPP filer's abuse
of the legal system to chill public debate. Consider arranging to hire an attorney who is knowledgeable about SLAPP law.

In addition to getting the case dismissed, you may want to
consider going on the offensive. Eight states have statutes allowing
"SLAPPback" suits, which are filed as counterclaims against a SLAPP or
in a separate lawsuit. These states are California, Delaware, Hawaii, Minnesota, Nevada, New York,
Rhode Island, and Utah. A SLAPPback is a lawsuit you can bring against
the person who filed the SLAPP suit to recover compensatory and
punitive damages for abuse of the legal process. Even if your state
does not have a statute addressing SLAPPbacks, you may be able to sue
your opponent for malicious prosecution or abuse of process under the
common law of your state. However, you should not underestimate the
considerable expense required to bring a SLAPPback, like any lawsuit,
to a successful conclusion.

We are looking for contributing authors with expertise in media law, intellectual property, First Amendment, and other related fields to join us as guest bloggers. If you are interested, please contact us for more details.

Disclaimer

Information in this guide is based on general principles of law and is intended for information purposes only; we make no claim as to the comprehensiveness or accuracy of the information. It is not offered for the purpose of providing individualized legal advice. Use of this guide does not create an attorney-client or any other relationship between the user and the Digital Media Law Project or the Berkman Center for Internet & Society.

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